CAMPAIGN FINANCE AND THE FIRST AMENDMENT

by Erik S. Jaffe

“John McCain is a fascist who is trying totake away your First Amendment rights!”

Anonymous

Provocative political speech? Yes. Protected by the FirstAmendment? Without a doubt. But if John McCain and othershave their way, it soon may be illegal to offer the above criticismin numerous situations. On April 2, 2001, the Senate passed S. 27,the McCain-Feingold bill, in the latest effort to enact campaignfinance reform. That bill would regulate virtually all spending onspeech by national political parties; regulate vast tracts of speechby state political parties; ban ever-increasing amounts of speech bybusiness corporations, nonprofit organizations, and labor unions;and force disclosure of the individual identities of personsengaging in many types of political speech or political association.Thus, if an election is imminent, the above speech could violateseveral provisions of McCain-Feingold depending upon theidentity of Anonymous, how the speech is distributed, the sourceof money paying for the distribution, and the content and cost ofany previous speech by Anonymous.

The sweeping restrictions imposed by McCain-Feingoldrepresent significant challenges to current understanding of FirstAmendment protection for political speech. If enacted into law, avariety of legal challenges are certain and likely will cause theSupreme Court to revisit many of the issues raised in its seminal1976 decision in Buckley v. Valeo.1

While much of the constitutional debate over McCain-Feingold has focused on current Supreme Court jurisprudence,Buckley and its progeny rest on uncertain ground at the Court.Various members of the current Supreme Court have criticizedBuckley either as too restrictive or too protective of speech. Given

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the wide, though contradictory, dissatisfaction with Buckley, itcannot be relied upon as scripture, but must be reevaluated in lightof first principles.

In this paper, the Center for Individual Freedom (theCenter) will focus on principles as well as precedent, and set outwhat it considers to be the primary First Amendment principlesapplicable to campaign finance. It will then consider several majoraspects of McCain-Feingold that run afoul of those principles.2

On first principles, campaign finance restrictions areconstitutionally suspect endeavors. Both the First Amendmentitself and Supreme Court cases interpreting that amendment affordmaximum First Amendment protection to direct speech andassociation relating to elections. Restrictions on such speech andassociation are subject to strict scrutiny. Also offensive under theFirst Amendment, though sometimes condoned by the Court, arerestrictions on contributions and expenditures of money forpolitical speech. Both contributions and expenditures of money forpolitical speech are inextricably bound to the resulting speech.

Without constitutional protection for the use of money togenerate speech, running a paid ad in a newspaper, on television,or over the radio, or paying to copy leaflets could be made into acrime. Only those who independently own media outlets wouldhave effective avenues for speech, and even they might then beprevented from devoting those outlets – which cost money to run –to disfavored speech. While money itself may not be speech,where money is restricted precisely in those circumstances where itwill be used for speech, that restriction on money is merely ameans of restricting speech and must be scrutinized rigorouslyunder the First Amendment.

In the case of campaign finance, the legitimate governmentinterest in preventing corruption of elected officials should belimited to instances of quid pro quo bribery of actual or potentialoffice-holders. However, contributions and expenditures that arededicated solely to generating political speech should not beconsidered bribes, and the value of speech in persuading or

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informing the public may not constitutionally be considered“corrupt.”

Our democratic system in general and the First Amendmentin particular assume that politicians and the public will beinfluenced by the political speech of competing interest groups andindividuals. A system under which influential political speechnecessarily costs money certainly carries with it some risk thatpoliticians will place their self-interest in holding office ahead oftheir duty to their constituents as a whole. But however imperfector worrisome a system built on such influence may be, it is thesystem the Constitution established, it is better than thealternatives, and it may not simply be redefined as “corrupt” inorder to avoid the First Amendment.

Absent a demonstrable interest in preventing actualcorruption, campaign-related restrictions are often said to serve theinterest of avoiding a public “perception” of unproven corruptionthat might shake confidence in our democratic institutions. Butmere public suspicions or misperceptions of corruptionsurrounding contributions and expenditures for political speech isno basis for ignoring the constitutional scheme. Rather, the properanswer to such misperception is either more speech, the election ofcandidates voluntarily practicing the public’s notion of virtue, or,ultimately, a constitutional amendment if the existing systemcannot hold the public’s confidence. In no event are publicmisperceptions a justification for distorting constitutionalprovisions set out precisely to resist even the strongly held desiresof a temporal majority.

The above principles show major elements of McCain-Feingold to be incompatible with the First Amendment. First,McCain-Feingold directly restricts the speech and association ofpolitical parties and their members by regulating and limitingfunds raised for and spent on political speech. For example, in anelection where any federal candidate is on the ballot, all levels ofpolitical parties are severely restricted in their efforts to exhort thepublic to join a party, register to vote, or turn out at the polls onelection day. Political parties, no less than any other expressive

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associations, are entitled to the full protection of the FirstAmendment.

The influence of parties on candidates, particularly whenexercised through public speech, is an entirely proper consequenceof free speech and association. Furthermore, any disproportionateinfluence of large donors over the views of a political party ishardly improper influence, but rather is the inevitable consequenceof economic and social disparities.

Speech having unequal influence comes in many shapes –speech by the media, speech by celebrities, speech by religiousleaders, and speech by the economically successful. Whetherthrough differences in access, quantity, or credibility, the impact ofspeech will necessarily vary. But the First Amendment places itstrust in the public, not government, to sort it all out in the end.

Even if disparities in apparent influence are troubling, thegovernment may not attempt to equalize the political strength ofdifferent elements in society by restricting the voice of some toenhance the voice of others. The First Amendment uniquely andespecially condones political influence mediated through speechand forbids government manipulation of that aspect of the politicalprocess.

Second, McCain-Feingold’s added restrictions on speechby corporations and unions improperly suppress the speech ofparticular associations within society without any compellingbasis. Neither Ford Motor Company nor the United Auto WorkersUnion, for example, would be allowed to run a television adcriticizing McCain-Feingold if either McCain or Feingold werecandidates in an imminent election. Many nonprofit corporationswould likewise be barred from the most effective channels ofcommunication to criticize the policies or legislative efforts of afederal candidate facing an imminent election.

Use of a corporate structure does not diminish theconstitutional character of free association, and nonprofitcorporations make essential contributions to political dialogue

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through their expenditures for speech. Business corporations andlabor unions likewise serve as vital associations based on theshared interests of their members – assuming voluntary purchaseof stock by shareholders or payment of dues by union members.That those interests are largely economic does nothing to diminishtheir constitutional value. Political advocacy and speech driven byeconomic perspectives are likely universal and in any event are nodifferent than speech motivated by less worldly concerns.

Finally, McCain-Feingold’s requirement that certainnonprofit organizations and individuals engaging in“electioneering communication” must disclose their expenditures,receipts, and donors conflicts with the constitutionally protectedstatus of anonymous speech and association. If the ACLU or theNAACP, rather than Ford or the UAW, wanted to criticizeMcCain-Feingold prior to a relevant election, they would have topay for it through a restricted fund and disclose the names of thedonors to that fund. Requiring public disclosure of the identity ofprivate speakers and supporters of private associations as the priceof merely communicating an idea or associating with like-mindedindividuals is an excessive and unjustified burden on such speechor association. Whatever the value and usefulness such disclosuremay have to a curious public, such interests are not even remotely“compelling” in the First Amendment sense. By contrast, thevalue of privacy and anonymity can be extremely important toindividuals who might otherwise remain silent rather than voicecontroversial views or join unpopular causes. At least whereprivate expenditures for speech are concerned, the FirstAmendment leaves the balancing of the pros and cons of disclosureto the speaker, not Congress.

First Amendment Principles Applicable to Campaign Finance

Though people often agree on First Amendmentgeneralities, the devil and the disputes are usually in the details.Although political speech is protected, and money is vital foreffective speech, does the contribution or expenditure of money forspeech command the same value and protection as the direct act of

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speaking itself? While government has a compelling interest inpreventing corruption, what, beyond actually bribery, is to beconsidered corruption and is the elimination of even an incorrect“perception” of corruption a compelling government interestsufficient to outweigh First Amendment rights?

Buckley offered some answers to those questions, but fewon either side of the debate are necessarily satisfied with thoseanswers. Reviewing First Amendment principles and positingfresh answers to those questions will frame constitutionalevaluation of McCain-Feingold.

Campaign Speech Merits Maximum First AmendmentProtection. While the First Amendment protects many forms ofspeech, there is virtually no disagreement that speech about publicissues, laws, elected officials, and candidates is subject to the mostvigorous protection of the First Amendment. The Supreme Courthas repeatedly recognized that “the constitutional guarantee has itsfullest and most urgent application precisely to the conduct ofcampaigns for political office.” 3

Even the sometimes disparaged “express advocacy” for theelection or defeat of a candidate falls solidly within the core of theFirst Amendment protection of political speech. As the SupremeCourt correctly observed in Buckley, “[a]dvocacy of the election ordefeat of candidates for federal office is no less entitled toprotection under the First Amendment than the discussion ofpolitical policy generally or advocacy of the passage or defeat oflegislation.” 4 But for Buckley’s recognition of this basic principle,it could be made a crime for an individual to take out a smalladvertisement in a national newspaper that read “Vote for HarryBrowne.”

Political Association Merits Rigorous First AmendmentProtection. Another central aspect of the First Amendment is itsprotection for expressive association. As the Supreme Courtexplained in NAACP v. Alabama, “[e]ffective advocacy of bothpublic and private points of view, particularly controversial ones,is undeniably enhanced by group association,” and restrictions on

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association are thus “subject to the closest scrutiny” under the FirstAmendment.5

As a corollary to the protection of association itself, theability of an individual to keep his or her associations private islikewise protected. The deprivation of anonymity has beencorrectly held to pose a significant burden upon and deterrent toboth political speech and association, particularly where anindividual associates with a controversial group or voices anunpopular idea. As the Supreme Court has observed,

It is hardly a novel perception that compelleddisclosure of affiliation with groups engaged inadvocacy may constitute as effective a restraint onfreedom of association …. This Court hasrecognized the vital relationship between freedomto associate and privacy in one's associations. …Inviolability of privacy in group association may inmany circumstances be indispensable topreservation of freedom of association, particularlywhere a group espouses dissident beliefs.6

Forced disclosure of the individual identities of persons supportinggroup speech thus violates the First Amendment absent adequategovernment interests and narrow means of pursuing those interests.

Expenditures or Contributions for Speech AreInextricable from Speech Itself. While the bare contribution orexpenditure of money is not by itself speech – except in a limitedsymbolic sense – the contribution or expenditure of money for thespecific purpose of generating speech is so integrally entwinedwith the resulting speech that it is and should be protected to thesame extent as the speech itself. As with many rights, exercisingthe right to speak almost always costs money, especially if thespeaker intends to reach a large audience. The right to speak thusnecessarily encompasses the right to pay for speech or thedistribution of speech, just as the right to counsel encompasses theright to hire a lawyer and the right to free exercise of religionincludes the right to contribute to the church of one’s choice.

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In each of these cases the expenditure or contribution ofmoney is protected not because “money is speech” or “money is alawyer,” or “money is religion,” but rather because the expenditureof money is part of the exercise of the right to speak, to counsel, orto free exercise of religion. Government restrictions oncontributions or expenditures for speech thus necessarily restrictthe underlying speech itself.

As the Buckley decision at least nominally recognized, a“restriction on the amount of money a person or group can spendon political communication during a campaign necessarily reducesthe quantity of expression by restricting the number of issuesdiscussed, the depth of their exploration, and the size of theaudience reached. This is because virtually every means ofcommunicating ideas in today’s mass society requires theexpenditure of money. … The electorate’s increasing dependenceon television, radio, and other mass media for news andinformation has made these expensive modes of communicationindispensable instruments of effective political speech.” 7 Paymentfor communication is thus protected to the same extent as theresulting communication, and expenditure or contribution limits“impose direct quantity restrictions on political communicationand association by persons, groups, candidates, and politicalparties.” 8

The Supreme Court in Buckley correctly applied this basicequivalence when it protected independent expenditures of moneyfor political speech, but inexplicably lost sight of the main pointwhen it allowed regulation of “contributions” for campaignactivities (including “coordinated” expenditures). The cause of theerror seems to be the mistaken notion that contribution limitationsdo not directly limit speech or association because “the quantity ofcommunication by the contributor does not increase perceptiblywith the size of his contribution, since the expression rests solelyon the undifferentiated symbolic act of contributing,” and thatcontributions spent on subsequent communication merely“involve[] speech by someone other than the contributor.” 9 Thus,the Supreme Court recently observed that its cases “drew a linebetween expenditures and contributions, treating expenditure

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restrictions as direct restraints on speech, … which nonethelesssuffered little direct effect from contribution limits.” 10

The dichotomy between contributions and expenditures hascome under considerable attack over the years, most recently bythose who view expenditures as an effective substitute forcontributions and thus a means of circumventing contributionlimits. But the most telling criticism of the dichotomy is thatcontributions made for the express purpose of generating speechby the recipient – i.e., campaigning – are indistinguishable fromexpenditures made to generate speech through variousintermediaries. Thus, in the case of associations that receivecontributions from their members or supporters and in turn expendsuch funds on political communication, the Supreme Court hasrecognized that limiting association expenditures “precludes mostassociations from effectively amplifying the voice of theiradherents” and “‘is simultaneously an interference with thefreedom of [their] adherents.’” 11

If a contribution to an association with a favored viewpointis an amplification of the contributor’s voice, then so too is acontribution to a candidate with views favored by the contributor,and the contributor both speaks through and associates with thecandidate and other like-minded contributors. Just as with otherforms of expressive association, the campaign contributor’s ownspeech is not lost by the fact that the final words are mouthed bysomeone “other than the contributor.” The First Amendment valueof contributions for the express purpose of funding speech thus isnot merely the symbolic value of the act of contributing, but thefull speech-generating value of the funds contributed. Then-ChiefJustice Burger recognized in his partial concurrence and dissent inBuckley that “contributions and expenditures are two sides of thesame First Amendment coin,” and criticized the Court for playing“word games” in failing to recognize that “people[,] candidates andcontributors spend money on political activity because they wish tocommunicate ideas, and their constitutional interest in doing so isprecisely the same whether they or someone else utters thewords.” 12

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Current members of the Supreme Court have likewiserecognized the equivalent First Amendment value of contributionsand expenditures. Justice Thomas, joined by Justice Scalia, haswritten in dissent that even “in the case of a direct expenditure,there is usually some go-between that facilitates the disseminationof the spender’s message …. To call a contribution ‘speech-by-proxy’ thus does little to differentiate it from an expenditure.” 13

Noting that the Supreme Court affords full value to speech-by-proxy in the case of private associations and their contributors,Justice Thomas correctly criticizes the Buckley decision forignoring that “a contribution, by amplifying the voice of thecandidate, helps to ensure the dissemination of the messages thatthe contributor wishes to convey.” 14

Having a valid point about the lack of communicativedifference between contributions and expenditures, proponents ofMcCain-Feingold seek to extend regulation to expenditures inaddition to contributions. While the premise is correct, theconclusion is flawed: The similarity between contributions andexpenditures suggests not that expenditures may be regulated, butrather that regulation of contributions must be scrutinized withgreater rigor and, in most cases, also violates the First Amendment.

The Government Interest in Preventing “Corruption” IsNarrow. There is virtually no disagreement that the governmenthas a compelling interest in preventing corruption of governmentofficials. Bribes in the form of money given to a present orpotential government official as a quid pro quo for subsequentofficial acts serving the private interest of the giver pose asufficiently compelling object of regulation that might restrict FirstAmendment rights to some degree. More controversial, however,is whether the compelling interest in eliminating “corruption”extends beyond controlling direct bribery and reaches the myriadof indirect potential causes of supposed favoritism for private overpublic interest.

Justice Thomas has chided the majority of his colleaguesfor extending the government interest in corruption “beyond itsquid pro quo roots” to include any supposed deviation from

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theoretical purity in the service of public officials, thus allowing“vague and unenumerated harms to suffice as a compelling reason”to restrict speech.15 The Center agrees that a compelling interest incombating corruption is limited by the First Amendment to theinterest in eliminating quid pro quo bribery of governmentofficials.

The Center notes two basic limitations on what should beconsidered a bribe for purposes of establishing a compellinginterest in corruption. First, speech, though often valuable to acandidate or official, should not be considered a bribe even wherespecifically offered in exchange for subsequent official conduct.As a simple example, it is common political practice for a privateorganization to state to a candidate that it will publicly endorse thatcandidate if and only if that candidate takes a particular position onsome item of government policy or legislation. A group promisingendorsement as a quid pro quo for a candidate’s action to(restrict/safeguard) abortion, for example, is engaging in entirelyprotected conduct despite that such behavior is theoreticallystructured as a bribe.

Second, the Center questions whether monetarycontributions to a campaign fund that are usable only for politicalspeech are properly equivalent to money that can be converted to acandidate’s personal use. While there is no question that money,like speech itself, has value, that value is so integrally tied into theuniquely protected constitutional activity of speech that it may beinappropriate to treat it as a bribe.

Merely monetizing the value of speech does not convert itinto a bribe. Furthermore, if the candidate cannot convert themoney to personal use, the thing of “value” being given is not themoney itself, but assistance in being elected and the presumedpersonal interest the candidate has in his election. But if aid ingetting elected is the “value” portion of a bribe, then all ofdemocracy is essentially a bribe wherein candidates are offeredelection in exchange for taking favored actions once elected. Suchan expansive conception of bribery is troubling at best, and is not acompelling basis for restricting speech. Thus, where a contribution

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may be used only for campaign speech, and hence is merely oneamong many forms of assistance in an election, we should behesitant to analogize it to bribery, particularly absent any quid proquo arrangement.

Avoiding Mistaken “Perceptions” of Corruption Is Not aCompelling Interest. When discussing the government interests inBuckley, the Court offered, with little analysis, the claim that “theappearance of corruption stemming from public awareness of theopportunities for abuse” in campaign contributions was of “almostequal concern as the danger of actual quid pro quoarrangements.” 16 The only support for this assertion, however,was the Court’s previously expressed concern, in Letter Carriers v.Civil Service Commission, over the appearance of corruptionwhere civil servants engaged in openly partisan politicalactivities.17 But that earlier case involved the conduct of anunelected government employee himself, not conduct by privatecitizens that might be thought to sway the conduct of electedofficials in some non-demonstrable and wholly speculative way.That the mass of the public mistakenly perceives “corruption”where none exists is no credible grounds for restricting speech,even assuming that such perception might eventually lead to a lossof confidence in the supposedly corrupt elected officials. The FirstAmendment simply does not allow speech to be sacrificed topublic opinion in that way.

The First Amendment points us to other solutions to theproblem of unsubstantiated public perceptions. The mostcompatible solution is more speech to educate the public to correctany misperceptions about the incidence of corruption, the means ofdealing with genuine corruption, and the non-corrupt nature of anyofficial who cares to defend himself. If more speech does notchange the public perception of corruption, the public can alwaysvote against those deemed corrupt or subject to corruption. And ifthe public perception of corruption were sufficient to erodeconfidence in the system “to a disastrous extent,” as Buckleyspeculated,18 then surely the public would be motivated enough tovote for a candidate who voluntarily eschews the supposedlycorrupting influence of large campaign contributions. If they are

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not sufficiently motivated to vote differently, then there is amplereason to question whether any supposed perceptions of corruptionpresent a clear and present danger to democracy.

Finally, if the public perceives that the First Amendmentstands as a barrier to eliminating corruption and thus losesconfidence in the system, that is a persuasive impetus for aconstitutional amendment, not a basis for ignoring the Constitutionas it currently is structured. The mechanism for amendingconstitutional provisions when the public has lost confidence inthose provisions is not a threat to democracy, but rather is theproper operation of our democracy. Constitutional amendmentsare purposefully difficult to adopt, precisely to ensure that anymajor change in our system of government is the result of adeliberate and considered decision by the people and not a hastyreaction by a momentary majority.

McCain-Feingold Violates the First Amendment

Many aspects of McCain-Feingold tread on FirstAmendment rights with inadequate or non-existent justification.Even the drafters of the bill seem to have recognized the doubtfulconstitutional validity of various provisions by includingcontingent provisions that will be triggered upon judicialinvalidation of the primary provisions. Rather than parse everyunconstitutional jot and tittle of McCain-Feingold, however, theCenter will focus on three major areas in which the bill offendscore First Amendment principles. Those areas are speech bypolitical parties, speech by corporations and unions, and forceddisclosure of the identity and political expenditures of individualsand associations. In each of these areas, McCain-Feingold goesbeyond current law to restrict speech and association in violationof a proper understanding of the First Amendment.

Restrictions on Political Party Speech. One majorobjection to McCain-Feingold is its restriction of speech bypolitical parties. McCain-Feingold forbids national committees ofpolitical parties from spending for political speech except using

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“hard money” – i.e., money obtained through federally limiteddonations and subject to various spending restrictions. It thuseliminates “soft money” – money raised and spent without federallimitation – currently used for political speech that does notexpressly advocate election or defeat of a federal candidate. As tostate, district, and local committees of political parties, the billadopts an expansive definition of “Federal election activity” andrequires that such activity be conducted with federally regulatedmoney.19

For example, in the four months preceding almost anyelection, a state party may only use hard money subject to stringentfederal restrictions to register voters, conduct get-out-the-votecampaigns, or issue a public communication referring to acandidate for federal office regardless of whether thecommunication advocates the election or defeat of that candidate.20

Thus, in the not-uncommon situation of a sitting state governorrunning for federal office, state parties or candidates would belimited to using federal hard money to praise or criticize thegovernor in the context of their own state or local races. Indeed,even criticism of that sitting governor in connection with hisongoing state conduct would be subject to federal hard-moneycaps. In the case of national parties, the restriction is even moresevere, applying hard-money caps to all political speech even iflimited to legislative issues or party-building activities such asmembership drives.

The First Amendment analysis of contributions to andcommunications by political parties is and should be the same aswith any other organization as far as the speech interests areconcerned. Political parties self-evidently engage in the corespeech protected by the First Amendment, as the Supreme Courthas repeatedly recognized.

A political party’s independent expression not onlyreflects its members’ views about the philosophicaland governmental matters that bind them together, italso seeks to convince others to join those membersin a practical democratic task, the task of creating a

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government that voters can instruct and holdresponsible for subsequent success or failure. Theindependent expression of a political party’s viewsis “core” First Amendment activity no less than isthe independent expression of individuals,candidates, or other political committees.21

Restrictions on a political party’s ability to finance its own politicalspeech thus implicate the First Amendment in its fullest and mostimmediate sense, regardless of whether such speech involvespromoting a candidate, increased voter registration, or any othertopic on which a political association might wish to express itsviews and those of its members.

McCain-Feingold would limit the speech of political partiesand their members by forbidding or restricting the collection andexpenditure of money necessarily and integrally tied to protectedspeech. It does so based upon the supposed influence thatcontributions to and expenditures by the party would have on thecandidates and officials endorsed by the party. Such supposedinfluence on and by political parties, however, is a far cry from the“corruption” of elected officials that might constitute a compellingbasis for narrowly tailored speech regulations.

Even assuming that candidates and office-holders will beresponsive to the views of their endorsing party and its majorsupporters, such accommodation is hardly “corrupt.” Rather,aggregation of resources and amplification of views throughpolitical association are precisely the points of freedom ofassociation, and influencing the public and public officials arelikewise the points of political speech. A candidate’sresponsiveness to the views of his chosen political party is nodifferent than his responsiveness to the views of other influentialassociations and groups within his constituency. In a systemdesigned for the very purpose of mediating power through speech,it is oxymoronic to then designate the influence of such speech as“corrupt.” 22

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Whatever the understandable concern that resourceinequality can translate into inequality of political influence, if thatinfluence is mediated through political speech, it is an inequalitycontemplated by the First Amendment and protectednotwithstanding any supposed tension between freedom andequity. First Amendment freedoms simply cannot be sacrificed onthe altar of social concern absent a constitutional amendment soaltering our system of government.23

Corporate and Union Speech. McCain-Feingold adds toexisting restrictions on corporate and union speech by forbiddingsuch entities from engaging in “electioneering communication,”which includes broadcast, cable, or satellite communication tomembers of the electorate that “refers to a clearly identifiablecandidate” within 60 days of an election or 30 days of a primary.24

Because that definition includes communications that merely“refer to” a candidate, it covers sweeping amounts of speechcontaining any reference to an existing representative who may beup for reelection, regardless of whether that speech concerns ordirectly mentions the election. That goes well beyond current, andquestionable, restrictions forbidding expenditures on “expressadvocacy” of the election or defeat of a candidate or directcontributions to a candidate.

Denying corporations and unions the ability to engage in aparticularly effective form of speech at a time when such speech ismost relevant to the public is unconstitutional discriminationagainst certain classes of speakers. Such discrimination seemsbased on some imagined concern that the views expressed by thosespeakers will somehow distort the distribution of viewpoint thatwould be expressed otherwise. While there is no particular reasonto believe that corporations and labor unions will lack a diversityof competing and conflicting viewpoints on issues relevant to anelection, the very notion of government meddling with speech toalter the balance of viewpoints is all the more reason to protectcorporate and union speech rather than to restrict it.

So long as the purchase of corporate stock or the paymentof union dues is voluntary, those entities represent just one more

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form of association among individuals. Insofar as the associations’activities are expressive, such activities should be protected by theFirst Amendment just as the expressive activities of any otherassociation are protected. That the viewpoints expressed by suchassociations are likely based upon the common economic interestsof their shareholders or members does not change the equation.

Common economic interests are as valid a basis forexpressive association as any other type of common interest.Simply because the associations also engage in certain non-expressive activities generating substantial resources that can bedevoted to speech does not distinguish them from associationshaving wealthy, generous, or numerous members and thus alsocapable of devoting substantial resources to speech. Justice Scaliaaptly criticized corporate speech restrictions premised upon thenotion that because

corporations have so much money, they will speakso much more, and their views will be giveninordinate prominence in election campaigns. Thisis not an argument that our democratic traditionsallow – neither with respect to individualsassociated in corporations nor with respect to othercategories of individuals whose speech may be“unduly” extensive (because they are rich) or“unduly” persuasive (because they are movie stars)or “unduly” respected (because they areclergymen). The premise of our system is thatthere is no such thing as too much speech – that thepeople are not foolish but intelligent, and willseparate the wheat from the chaff.25

The true danger of corruption lies not in an excess of speech bycorporations or others with supposedly disproportionate resources,but rather in government restrictions on speech, which the framersof the First Amendment believed inevitably would be used to favorthose currently in power, at the expense of the public.

McCain-Feingold’s corporate speech restrictions also applyto nonprofit corporations, though tax-exempt corporations under

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Internal Revenue Code §§ 501(c)(4) and 527(e)(1) may engage insuch communications if they create a separate segregated fund forsuch communications financed solely by individuals.26

Such application of corporate speech restrictions tononprofit corporations suggests that the provision represents amore direct assault on the freedom of association itself rather thanany unique concern with the aggregation of capital through thecorporate business form. In that case, the seeming purpose ofrestricting the core political speech of expressive associations isnothing less than a strike at the heart of the very concept of freeassociation.

The only apparent objection to various nonprofitcorporations appears to be that they do precisely what the FirstAmendment contemplates associations will do: They amplify andincrease the effectiveness of the expression of the views of theirmembers and supporters. To label such enhanced communication“corrupt” is incompatible with the First Amendment. That certainegalitarian political theories may view collective expression withdisdain and may only value purely individual expression, suchtheories are not the basis of our Constitution or the FirstAmendment.

The Constitution protects both individual and collectiveexpression, and rightly so. Where government functions onlythrough the combined choices of the electorate and itsrepresentatives, restricting the ability of individuals to combine inthe expression of their views would cast a pall of ignorance oversubsequent government choices in responding to the collectiveviews and interests of the people. A cacophony of tinyindividualized voices incapable of coordinating and combining forcoherent expression would simply undermine the responsivenessof government to widespread interests and issues that, even ifmuzzled, will not go away.

There is no constitutionally valid justification for McCain-Feingold’s restrictions on the direct speech of any voluntaryassociation, whether labor union or corporation, business entity or

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nonprofit organization. The views of such voluntary associationsare as much a part of the public debate guaranteed by the FirstAmendment as are the views of any other group or individual.Insofar as such associations direct their resources through themedium of speech, they cannot be deemed “corrupt” in a systemwhere speech is a uniquely and necessarily valid form of politicalcurrency.

Forced Disclosures. McCain-Feingold allows pre-electionspeech by individuals and certain nonprofit organizations – thoseexempt under sections 501(c)(4) and 527 of the Internal RevenueCode – but as to those speakers it exacts a significant price forcertain such speech. Speakers engaging in “electioneeringcommunication” via broadcast, cable, or satellite communicationsand referring to a candidate for federal office, and expending over$10,000 in any year must disclose the details of their expenditures.Where the speakers are exempt nonprofit organizations, they mustidentify, among other things, all persons who contributed over$1,000 either to the relevant segregated fund or, in some cases, tothe organization itself.27

The courts have long recognized that forced disclosure ofan individual’s political affiliations and views can act as asignificant deterrent to free association or expression.28 Wheredisclosure is required in connection with political speech orassociation, strict scrutiny requires that the burden of disclosure bejustified by a compelling interest. In the case of McCain-Feingold,it is virtually impossible to detect such an interest in connectionwith independent expenditures or contributions to privateassociations. Insofar as such disclosure might be thought to addmaterial information about a candidate by revealing the identity ofthose who simply agree with that candidate but who are not evenacting in concert – i.e., coordination – with that candidate, theinterest in such marginal information value is not compelling.

An anonymous advertisement saying “Vote for Joe becausehe supports free trade” tells the public something about Joe’spolicy views, but is not particularly enhanced by compelledidentification of the speaker. The public can readily assume that

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the speaker favors free trade and may well stand to gain from freetrade. And the public can be as skeptical as it likes based on theanonymity itself. Knowing that the speaker, for example, is “Bobthe importer” adds little or nothing to what the public can alreadysurmise, but easily may expose Bob to adverse treatment by those(including Joe’s opponent) who disagree with Bob’s politicalviews.

The Supreme Court has correctly rejected the marginalinformational interest in disclosure in the case of anonymouspolitical handbills.

Insofar as the interest in informing the electoratemeans nothing more than the provision of additionalinformation that may either buttress or underminethe argument in a document, we think the identity ofthe speaker is no different from other componentsof the document's content that the author is free toinclude or exclude. … The simple interest inproviding voters with additional relevantinformation does not justify a state requirement thata writer make statements or disclosures she wouldotherwise omit.29

Beyond the informational interest, there is little to justify forceddisclosure. Public disclosure of the identity of private speakersand members of private associations also has no connection tocorruption of candidates, particularly where the connectionbetween the individual or associational speaker and the candidateis attenuated – i.e., the expenditure is independent.

That the disclosure burden of McCain-Feingold wouldapply primarily to speech in close proximity to an election orprimary and made via the most effective tools of masscommunication only makes it more offensive, not less. To place aheightened burden on speech precisely when and how it is mosteffective suggests that the restriction is targeted at thecommunicative impact of the speech rather than some non-speechinterest. But government substituting its notions of what thecontent of pre-election speech should be for the views of the

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speakers themselves is once again contrary to the most basicpremises of the First Amendment. In the Center’s view, it is up toeach speaker to decide whether to proceed anonymously or forattribution, and it is up to the public to weigh the value ofanonymous or attributed speech accordingly. The FirstAmendment forbids Congress from making those choices for us.

CONCLUSION

McCain-Feingold represents a frontal assault on a varietyof First Amendment principles, some, but not all, discussed in thispaper. Because Buckley and its progeny are under attack from bothsupporters and opponents of campaign finance restrictions, andbecause the Supreme Court may well move in a new directionwhen next called to confront these issues, anyone concerned withindividual freedom must consider the First Amendment issuesfrom the perspective of first principles.

While existing precedents can be both instructive andpersuasive, they cannot casually be relied upon either to save or tostrike particular aspects of McCain-Feingold. Rather, McCain-Feingold, like the precedents themselves, will stand or fallaccording to the persuasiveness of the principles invoked on eitherside of the argument.

This paper is intended to serve as a starting point forsupporting and in some instances challenging current precedent inorder to provide the First Amendment the respect it is due. While,as a practical and constitutional matter, the Supreme Court willhave the final say on what the Constitution means, there is ampleopportunity for research and reasoning before that resolution, andsuch efforts may well help inform the choices made by lawmakersand, if necessary, by the Supreme Court when called to review newcampaign finance legislation.

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1 Buckley v. Valeo, 424 U.S. 1 (1976).2 McCain-Feingold has been chosen for this constitutional analysisbecause it has passed the full Senate and moved to the House. Most ofthe commentary in this paper applies equally to all similar proposals (andto some current law), whatever their origin or designation.3 Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971); see also Buckley, 424U.S. at 15 (same); Nixon v. Shrink Missouri Government PAC, 528 U.S. 377,386 (2000) (same).4 Buckley, 424 U.S. at 48. The Court since Buckley, however, has drawn adistinction between so-called “express advocacy” of the election or defeat of acandidate and all other speech that might refer or relate to candidates or issuesbut that stops short of using phrases such as “vote for” or “vote against” acandidate. Buckley, 424 U.S. at 43, 44 n. 52. From a First Amendmentperspective, this supposed distinction has nothing to do with the value of thespeech or the degree of scrutiny restrictions on such speech ought to receive.The distinction exists not because of any logical difference between express andother forms of advocacy, but rather for the sake of providing a bright – ifarbitrary – line distinguishing election-related advocacy from other advocacy,and thus avoiding the vagueness of restrictions on speech “relative to” acandidate. Id. at 41-44. And even with such a clarifying distinction, the Courtin Buckley correctly invalidated restrictions on independent expenditurescontaining express advocacy. The distinction remains relevant – still to avoidvagueness – only for the purposes of certain disclosure requirements and forrestrictions on corporate and union speech, the latter of which arguably raisedifferent government interests not present with individual speech.5 NAACP v. Alabama, 376 U.S. 449, 460-61 (1958).6 Id. at 462.7 Buckley, 424 U.S. at 19 (footnote omitted).8 Id. at 17 & n. 17.9 Id. at 21.10 Nixon, 528 U.S. at 386; see also id. (“similar difference between expenditureand contribution limitations in their impacts on the association right”).11 Buckley, 424 U.S. at 22 (citation omitted).12 Id. at U.S. at 241, 244 (Burger, C.J., concurring in part and dissenting in part).Then-Chief Justice Burger also correctly pointed out that the speech-by-proxydistinction between contributions and expenditures was a complete falsehood inthe case of coordinated or “authorized” expenditures, which are counted andrestricted as contributions despite involving the direct speech of the person

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making the expenditure. 424 U.S. at 243 & n. 8 (Burger, C.J., concurring in partand dissenting in part). Whether or not such coordinated expenditures implicatea stronger government interest, they most certainly do not involve a diminishedFirst Amendment interest for the individual and in fact squarely highlight theindividual’s associational interest in coordinating with a candidate or campaigncommittee of like mind.13 Nixon, 528 U.S. at 413 (Thomas, J., dissenting) (citation and internalquotation marks omitted).14 Id. at 414-15.15 Id. at 423-24 (Thomas, J., dissenting).16 Buckley, 424 U.S. at 27.17 Id. (citing CSC v. Letter Carriers, 413 U.S. 548, 565 (1973)).18 Id. (internal quotation marks omitted).19 S. 27 (ES), at 3-12.20 Id. at 8-10.21 Colorado Republican Federal Campaign Comm. v. FEC, 518 U.S. 604, 615-16 (1996); see also Eu v. San Francisco County Democratic Central Comm.,489 U.S. 214 (1989).22 And even assuming some inherent coordination between a political party anda candidate of that party – an assumption expressly rejected in ColoradoRepublican, 518 U.S. at 621-22 – such coordination does not diminish theconstitutional value of the speech by the party. At most it simply increases thevalue of that speech to the candidate. But to say that a candidate is “corrupted”by the valued speech of his chosen associates is constitutionally untenable. Theinfluence of valuable speech is not improper under a constitution that viewsspeech as the protected means of influencing both government and the public. Ifanything, the coordination of party speech and candidate speech is the archetypeof political association whereby persons seek to enhance the effectiveness oftheir own speech through combination and coordination with others of likemind. Calling coordinated speech a “contribution” adds nothing to the analysisand highlights the problem with regulating even monetary contributions used forgenerating speech.23 Well-regarded, influential, or wealthy people may well have a substantialinfluence on public opinion and may well influence the election of publicofficials. But that is an entirely proper aspect of our constitutional democracy.The notion of equalizing the quantity and quality of speech on each side of allissues by restricting the speech of those with greater ability or determination tospread their message is contrary to the very core of the First Amendment andhas been rightly and roundly rejected by the Supreme Court. Buckley, 424 U.S.at 48-49.

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24 S. 27 (ES) at 15, 18.25 Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 695 (1990) (Scalia,J., dissenting).26 S. 27 (ES) at 22.27 Id. at 15-20; see also id. at 14 (itemization of contributions to political partiesabove $200 per year).28 See NAACP v. Alabama, 376 U.S. at 462; McIntyre v. Ohio ElectionsComm’n, 514 U.S. 334, 341-42 (1995).29 McIntyre, 514 U.S. at 348.

Erik S. Jaffe is a sole practitioner in Washington, D.C.,concentrating in appellate litigation. He is a 1990 graduate ofColumbia Law School and has clerked for Judge Douglas H.Ginsburg of the U.S. Court of Appeals for the D.C. Circuit andJustice Clarence Thomas of the U.S. Supreme Court. Mr. Jaffe haswritten several briefs for the Center for Individual Freedom onFirst Amendment issues before the U.S. Supreme Court and beforeother appellate courts.

Center for Individual Freedom

Founded in 1998, the Center for Individual Freedom is anon-partisan, non-profit organization with the mission toprotect and defend individual freedoms and individual rightsguaranteed by the U.S. Constitution.

The Center engages in three distinct but complementaryactivities:

Legal activities. It is a fundamental premise of the Centerthat the courts are rapidly supplanting legislative and publicinitiatives, as our increasingly diverse Republic seeks tobalance the interests of individuals, interest groups andgovernment. The Center will engage constitutionalauthorities to participate in major litigation on behalf offundamental individual rights protection.

Legislative activities. State legislatures and the U.S.Congress at times introduce and pass legislation that violatesthe Constitution. The Center seeks to make its voice heardon important legislative issues affecting constitutional rightsand freedoms.

Education. Through a variety of publications, seminarsponsorships, issues papers and briefings, news bulletinsand broadsides, the Center seeks to reaffirm the plainlanguage imperatives of the U.S. Constitution, relating it tocontemporary conflicts that cannot be allowed to erode orcircumvent it.

Based in Alexandria, Virginia, the Center for IndividualFreedom is a non-profit, 501(c)(4) corporation that relies onprivate financial support from individuals, associations,foundations and corporations. For more information, pleasecall us at 703-535-5836 or visit our website at www.cfif.org.